11384213 (B.P.A.I. Aug. 29, 2010)

Ex Parte Andrews

Board of Patent Appeals and InterferencesAug 29, 2010

11384213 (B.P.A.I. Aug. 29, 2010)

UNITED STATES PATENT AND TRADEMARK OFFICE UNITED STATES DEPARTMENT OF COMMERCE United States Patent and Trademark Office Address: COMMISSIONER FOR PATENTS P.O. Box 1450 Alexandria, Virginia 22313-1450 www.uspto.gov APPLICATION NO. FILING DATE FIRST NAMED INVENTOR ATTORNEY DOCKET NO. CONFIRMATION NO. 11/384,213 03/16/2006 David A. Andrews 3016.ZIJA.NP 9093 27472 7590 08/30/2010 BATEMAN IP LAW GROUP P.O. BOX 1319 SALT LAKE CITY, UT 84110 EXAMINER HOFFMAN, SUSAN COE ART UNIT PAPER NUMBER 1655 MAIL DATE DELIVERY MODE 08/30/2010 PAPER Please find below and/or attached an Office communication concerning this application or proceeding. The time period for reply, if any, is set in the attached communication. PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE __________ BEFORE THE BOARD OF PATENT APPEALS AND INTERFERENCES __________ Ex parte DAVID A. ANDREWS __________ Appeal 2010-003875 Application 11/384,213 Technology Center 1600 __________ Before ERIC GRIMES, LORA M. GREEN, and STEPHEN WALSH, Administrative Patent Judges. GREEN, Administrative Patent Judge. DECISION ON APPEAL1 This is a decision on appeal under 35 U.S.C. § 134 from the Examiner’s rejection of claims 13-23. 1 The two-month time period for filing an appeal or commencing a civil action, as recited in 37 C.F.R. § 1.304, or for filing a request for rehearing, as recited in 37 C.F.R. § 41.52, begins to run from the “MAIL DATE” (paper delivery mode) or the “NOTIFICATION DATE” (electronic delivery mode) shown on the PTOL-90A cover letter attached to this decision. Appeal 2010-003875 Application 11/384,213 2 We have jurisdiction under 35 U.S.C. § 6(b). STATEMENT OF THE CASE Claim 132 is the only independent claim on appeal, and reads as follows: 13. A method of preparing a nutraceutical composition, comprising: grinding at least two Moringa plant components selected from the group consisting of leaves, seeds comprising at least a portion of the seed other than the oil, and a portion of the fruit other than the seeds of the Moringa plant; providing at least one fruit or vegetable component not from a Moringa plant; and combining the at least one fruit or vegetable component and the at least two Moringa plant components into a mixture. Claims 13-23 stand rejected under 35 U.S.C. § 103(a) as being rendered obvious by the combination of Nambiar,3 Njoku,4 and GrowingWell.com.5 We reverse. 2 Appellant has elected a composition based on the combination of leaves and seeds, and has further elected orange as the fruit component and tomato as the vegetable component. (App. Br. 4.) 3 Nambiar, et al., Drumstick Leaves as Source of Vitamin A in ICDS-SFP, 70 INDIAN J. OF PEDIATRICS, 383-387 (2003) 4 Njoku et al., Investigation on Some Physico-Chemical Antioxidant and Toxicological Properties of Moringa Oleifera seed oil, 47 ACTA PHARM. 287-290 (1997) 5 Growing well.com - Food Requirements, http://www.growingwell.com/ bchild/dngrownup.htm (last visited 03/27/08). Appeal 2010-003875 Application 11/384,213 3 ISSUE Has the Examiner correctly interpreted claim 13 such that it is rendered prima facie obvious by the combination of Nambiar, Njoku, and GrowingWell.com? FINDINGS OF FACT FF1 The Examiner’s statement of the rejection may be found at pages 4-6 of the Answer. FF2 The Examiner cites Nambiar for its teaching of using powdered Moringa leaves as a nutritional supplement. (Ans. 4.) FF3 The Examiner relied on Njoku for its teaching of “using Moringa leaves as a vitamin A supplement.” (Id. at 5.) FF4 Specifically, the Examiner notes that “Moringa seeds are [an] abundant and renewable source of vitamin A containing oil,” wherein Njoku obtains the seed oil by grinding the seed and then extracting the oil. (Id.) FF5 The Examiner concludes that as claim 13 uses the transition phrase “comprising,” it does not exclude the additional steps of Njoku, that is, grinding the seeds, and extracting the oil from the seeds. (Id. at 7.) The Examiner further concludes that “[t]he use of the solid portions [of the seeds] in the final process step is not specifically claimed.” (Id.) FF6 The Examiner relies on the GrowingWell.com Website for its disclosure that orange and tomato juices are known sources of vitamin A. (Id. at 5.) FF7 The Examiner concludes that it would have been obvious to combine the ingredients of Nambiar, Njoku, and the GrowingWell.com website Appeal 2010-003875 Application 11/384,213 4 because all three references teach that the ingredients are used as vitamin A supplements. (Id.) PRINCIPLES OF LAW We recognize that during prosecution before the Office, claims are to be given their broadest reasonable interpretation consistent with the Specification as it would be interpreted by one of ordinary skill in the art. In re American Academy Of Science Tech Center, 367 F.3d 1359, 1364 (Fed. Cir. 2004). Claim language, however, “should not [be] treated as meaningless.” Bicon, Inc. v. Straumann Co., 441 F.3d 945, 951 (Fed. Cir. 2006). Moreover, “the claims themselves provide substantial guidance as to the meaning of particular claim terms.” Philips v. AWH Corp., 415 F.3d 1303, 1314 (Fed. Cir. 2005) (en banc). ANALYSIS Appellant argues that “claim 13 requires grinding a portion of the seed other than the oil and combining this portion with Moringa leaves into a nutraceutical composition for consumption.” (App. Br. 7.) Njoku, Appellant asserts, only teaches consumption of the oil, and not the seed solids. (Id.) The Examiner’s rejection is based on an interpretation of claim 13 that does not require combining a Moringa plant component that comprises a portion of the seed other than the oil into a mixture, the other Moringa plant component, and a fruit or vegetable component. Appeal 2010-003875 Application 11/384,213 5 Claim 13, however, requires “grinding at least two Moringa plant components” wherein one of the components is “seeds comprising at least a portion of the seed other than the oil.” The last step of claim 13 requires “combining the at least one fruit or vegetable component and the at least two Moringa plant components into a mixture.” (Emphasis added.) We agree with Appellant that the claim limitation of “the at least two Moringa plant components” refers to the components in the grinding step, and thus requires combining “seeds comprising at least a portion of the seed other than the oil.” Njoku, the reference relied upon by the Examiner to meet that limitation, only teaches the use of the seed oil as a source of vitamin A, and not other portions of the seed. As the Examiner has not provided a reason or evidence as to why the ordinary artisan would have included a portion of the seed other than the oil in the final combining step in the method of preparing a nutraceutical composition of claim 13, we are compelled to reverse the rejection. CONCLUSION OF LAW We conclude that the Examiner has not correctly interpreted claim 13 such that it is rendered prima facie obvious by the combination of Nambiar, Njoku, and GrowingWell.com. We thus reverse the rejection of claims 13- 23 under 35 U.S.C. § 103(a). REVERSED Appeal 2010-003875 Application 11/384,213 6 dm BATEMAN IP LAW GROUP P.O. BOX 1319 SALT LAKE CITY UT 84110